DC Court Says Recordings Of Capitol Rioters Must Be Made Public, But Only On A Case-By-Case Basis

from the getting-prejudiced-by-your-own-livestream dept

Here’s a small victory for the First Amendment and presumption of openness that’s supposed to apply to court proceedings. A recent opinion [PDF] by the DC Circuit Court will give everyone more access to recordings covering the dozens of prosecutions of insurrectionist cosplayers who raided the Capitol on January 6th. The court comes down firmly on the side of openness and transparency, but has hung a rather large asterisk on that statement.

ProPublica is the entity that made the request for an administrative order, but it’s the in-court figurehead for a group of fourteen journalistic concerns. The US Attorney’s Office hasn’t exactly been proactive when releasing recordings entered as evidence in the Capitol raid cases. It has even (temporarily) withheld recordings that were pulled from social media services and YouTube — something that indicates these recordings were public before the government made them private.

While these recordings are viewable during court proceedings, limited access has prevented some journalists from accessing them. And once the proceedings are over, they’re no longer viewable. The DC Circuit Court has made some permanently accessible but only on a case-by-case basis. Considering the volume of criminal cases being handled by the court — combined with limited access prompted in part by the COVID pandemic — this no longer appears to be acceptable.

In the pending petition, the group of fourteen media organizations express frustration with the case-by-case approach to providing media access to video exhibits, explaining that petitioning for the release of video exhibits in individual cases has led to delayed release of those exhibits, and objecting to the absence of a platform to provide broad and convenient public access to video exhibits in the numerous Capitol Cases in which such exhibits have been presented to the court but are not available to the public. Consequently, they seek a standing order directing the government to contemporaneously release copies of video exhibits admitted in pretrial proceedings in the Capitol Cases to a designated press representative, ProPublica, for further distribution to news organizations and to the public at large.

The government doesn’t necessarily disagree. It would prefer to handle things its way — giving press members access through a shared “drop box.” Recordings would be placed there after being reviewed for any necessary redactions. But that would mean a 72-hour delay between their presentation in court and their accessibility by outsiders.

On the other side, the defendants’ legal reps are arguing that releasing recordings during the pre-trial phase would potentially prejudice their clients, decreasing their chances of receiving a fair trial. This includes possibly tainting jury pools or giving the government the upper hand with edited footage that might mislead members of the public.

Given these three conflicting interests, the court decides the records are definitely public. But how public and how quickly can’t necessarily be resolved with a broad order. It’s not that anyone isn’t aware of the January 6th Capitol raid or the arrests stemming from this. But there’s still a small chance defendants might lose access to a fair trial if selectively edited recordings are released.

Certainly, the events at the U.S. Capitol on January 6, 2021, generally, and the Capitol Cases in particular, have already been the subject of extraordinary attention both nationally and even globally. Given this context, disclosure of video exhibits in individual Capitol Cases may not generate any more prejudicial attention than already attaches to this event. Nevertheless, disclosure of particularly egregious or inflammatory conduct associated with an individual defendant or a particular video clip that “does not contain the whole event but rather a deliberately chosen or edited clip to support a certain argument or narrative,” FPD Resp. at 3, may present sufficient unfair prejudice at this stage that the presiding judge may decide to delay or limit access in some way. Evaluation of such risks must be carried out on a case-by case basis.

For the first time in a long time, the government agrees with the press. It argues the risk of prejudice is so low as to be speculative and supports ProPublica’s request for a blanket order affecting all recordings entered as evidence. Of course, this has nothing to do with supporting free speech protections and everything to do with getting as much damaging info about the Capitol raid suspects out there as possible, even if it means utilizing the Fourth Estate.

In the end, the press (and its new buddy, the government) wins. But only barely. And with a handful of stipulations.

For these reasons, petitioners’ request for issuance of a standing order to provide a streamlined means in this Court for making video exhibits in Capitol Cases accessible to the media will be granted but, in accordance with applicable law and rules, access to these video exhibits may be authorized after the presiding judge has the opportunity to consider the positions of the parties.

Yes, with a but. That’s probably all we can expect at this point in the judicial process. But it’s good to see the DC Circuit reiterate its belief in the presumption of openness. This is the circuit that hosts the highest percentage of sealed cases and dockets — something that has earned it a lot of justified criticism over the years. Hopefully it will maintain its support of this presumption when it’s the government arguing that filings and evidence should be withheld from the public.

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